IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr.M.P. No.23 of 2011
1. Jamaludin Saudagar
2. Momina Bibi
3. Gulam Anwar @ Kalim
4. Azad Saudagar
5. Zenuka Saudagar @ Zekua Saudagar
6. Fekua Saudagar
7. Hasmun Khatoon
8. Nazboon Khatoon
9. Gudia Khatoon
10. Chhoti Khatoon...................................................................Petitioners
Versus
The State of Jharkhand..............................................................Opposite Party
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Coram: The Hon'ble Mr. Justice D.K. Sinha
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For the Petitioners : Mr. B.B. Sinha, Advocate
For the State : Mr. Md. Hatim, A.P.P.
2/ 11.7.2011
Petitioners have invoked the inherent power of this Court for quashment
of the order dated 25.8.2010 passed by Smt. Kusum Kumari, Judicial
Magistrate, 1st Class, Bokaro in G.R. No.106/2009, arising out of Chas P.S.
Case No.14/2009, by which the petition filed on behalf of the petitioners was
rejected.
2. Prosecution story in short was that on 23.1.2009 while the informant
was going to the house of one B. Pandey, it was alleged that the petitioners
abused and assaulted him. It was specifically alleged against the petitioner
Azad Saudagar that he assaulted the informant with rod and petitioner
Jamaludin Saudagar snatched the wrist watch from the wrist of the brother-in-
law of the informant. Though the alleged allegation under Section 379 of the
Indian Penal Code is against Jamaludin Saudagar but cognizance of the
offence was taken under Section 379/34 of the Indian Penal Code against all
the accused persons. Petitioner Jamaludin Saudagar is the father of the
informant, aged about ninety years, and he has been falsely implicated in this
case wherein all the members of family of the petitioners have also been
implicated .
3. From perusal of the impugned order, I find that petitioners had filed a
petition for discharge on 21.12.2009 but it was rejected by drawing the
following orders:
“Heard and from perusal of the record, it appears that
petitioners are the FIR named accused persons. After investigation
Police submitted charge sheet u/s 147/148/341/504 IPC. The ld.
C.J.M., Bokaro, took cognizance against the accused persons u/s
147/148/323/341/504/379/34 IPC. From perusal of the FIR and entire
case record, it appears that there is sufficient materials available on
record for framing of charge. Hence, the discharge petition filed on
behalf of the accused persons on 21/12/09, is hereby stands
dismissed.”
4. I find that though the charge-sheet was submitted under Sections
147/148/341/504 IPC but the cognizance of the offence was taken by
introducing Sections 379/34 IPC recorded by the CJM, Bokaro without
expressing his disagreement with the charge-sheet, which was filed by the
Investigating Officer. However, I find that the CJM expressed that after
perusal of the FIR and the case record, there appears prima facie case for
framing of charge without disclosing as to under which circumstances
cognizance of the offence was taken under Section 379/34 I.P.C. and called
upon the petitioners to stand charged.
5. Learned counsel submitted that during investigation of the case no
material could appear before the Investigating Officer that the father of the
informant removed wrist watch from the wrist of the brother-in-law of the
informant and for such reason the Investigating Officer did not file charge-
sheet under Section 379 but without material on record cognizance was taken
for the said offence. Admittedly, no objection petition was preferred against
such inclusion of Sections 379/34 IPC but when the matter was agitated at
the time of framing of charge, it was not considered and though allegation was
directed against the old father, aged about ninety years, of removal of the wrist
watch, but the cognizance of the offence was taken under Sections 379/34
IPC against all the accused persons hence the order needs interference of
this Court.
6. Heard Mr. Hatim, the learned A.P.P. on behalf of the State.
7. Having regard to the facts and circumstances of the case, appreciating
the matter that the CJM has taken cognizance of the offence by introducing
Sections 379/34 IPC without expressing his disagreement with the charge-
sheet filed by the Investigating Officer and that the inclusion of Sections
379/34 IPC against the petitioner was without material in the case diary, I find
that order impugned dated 25.8.2010 needs interference and accordingly,
cognizance of the offence taken under Sections 379/34 IPC against the
petitioners is set aside and accordingly the cognizance in other Sections of
offence shall remain intact.
8. This petition is allowed in the manner indicated above.
(D.K. Sinha, J.)
S.B.